Category Archives: Working in the U.S.

Every year, U.S. Citizenship and Immigration Services (USCIS) opens up the filing period during which employers can submit petitions for new H-1B workers . . . and every year, the window of opportunity closes very soon after. This year, USCIS will begin accepting petitions for workers who are subject to the fiscal year (FY) 2014 cap on Monday, April 1, 2013.

The reason this timing is so important is that only 65,000 new H-1B visas (or status changes) can be given out per year, unless the worker falls into an exempt category. And of those 65,000, up to 6,800 are set aside for H-1B applicants under the U.S.-Chile and U.S.-Singapore Free Trade Agreements.

The most important exemption from this cap applies to the first 20,000 H-1B petitions filed for workers who have U.S. master’s degree or higher. Other widely used exemptions are available to H-1B applicants who will work at either institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations.

Even with the exemptions, there is stiff competition for those 65,000 spots — more demand than supply. In fact, USCIS expects to receive more than 65,000 petitions within less than a week, by April 5, 2013. The agency will notify the public as soon as it has received 65,000 petitions subject to the cap, and reject petitions submitted afterward. For any petitions that come in over the 65,000 but before USCIS’s announcement cutting off filings, USCIS plans to use a lottery system to select which ones will be processed.

USCIS is also making a temporary change to its premium processing service. Petitioners may still request premium processing, but they won’t receive a USCIS decision within the normal 15-day period. Instead, USCIS will begin counting the 15-day promised speedy processing period starting on April 15.

One of the most important topics to consider if you are hoping to petition for or get a job as an H-1B worker is whether the cap will be an issue, or whether some exemption or alternative is available. For details on this, see Nolo’s article, “When the H-1Bs Run Out: Alternative Visas and Strategies.”

With various bills in Congress aimed at making E-Verify — the system by which U.S. businesses can double check the validity of employees’ work-authorizing documentation — mandatory for all employers, a controversy has begun about what this will mean in terms of bureaucracy, costs, and civil rights.

In a February 7, 2013 Wall Street Journal article, for instance, Laura Murphy of the ACLU’s Washington Legislative Office and Fred L. Smith, chairman of the Competitive Enterprise Institute, argue that the program will result in unfair job losses and burdens on employers.

But as often happens in the U.S. media, the controversy is quickly becoming muddled with mistakes and hysteria. Before you form your own opinion, consider these key legal facts:

E-Verify is a new method for enforcing an old law. In and of itself, there’s nothing either sinister nor exciting and different about employers being asked to check the documents of every employee. They’ve long been required to do that, in order to make sure that new hires are either U.S. citizens, permanent residents, nonimmigrants with a visa allowing work, or have a work permit in connection with some other immigration status. That process is often harder than it sounds, given the many types of potential documents, from different years and sources, that an employer must examine. E-Verify gives employers a new way to check whether the person is on record with the U.S. government as being who they say they are.

The E-Verify database isn’t new. The system is already voluntary for employers in some states, and mandatory in other U.S. states. Making it mandatory nationwide will not change the fact that, as squeamish as this might make us feel, the U.S. government is amassing information on every working person in this country.

Employers may NOT fire employees whose status in E-Verify is still being contested. As described by attorney Nicole Kersey in the article “What Employers Should Do After E-Verify Issues a Tentative Nonconfirmation for an Employee,” the first thing that happens when an employee’s data doesn’t match up with that in the E-Verify system is that the employer will get a nonconfirmation notice, and the employee will have an opportunity to provide further information or contest the nonconfirmation. Contrary to what was stated in the WSJ article, an employee who contests is protected from termination until E-Verify issues a “Final Nonconfirmation.”

Some employers voluntarily choose E-Verify. Although it’s not a slam dunk, some employers find that they like the certainty of being able to check the E-Verify system, and the ability it gives them to develop a track record of compliance with U.S. immigration laws. See “Should Employers Sign Up for E-Verify?” for more about the pros and cons.

E-Verify isn’t perfect, of course. While the information in the database is getting better year by year, mistakes can happen. There are reasons for employers to avoid this system and for employees to worry about it. But let’s make this legislative decision calmly, without misrepresenting the law or the situation that already exists.

About Ilona Bray

The blog is written by Ilona Bray, a Nolo editor and the author of Becoming a U.S. Citizen. Her working background includes both solo immigration practice and working or volunteering as an immigration attorney with nonprofit organizations in Seattle and California.

Among Ilona’s most memorable volunteer experiences were passing out HIV+ literature in Guatemala, researching U.N programs as a legal intern for Amnesty International in London, and representing (pro bono) disabled, low-income people seeking Social Security benefits in Washington, DC.